Meatball chuckled. “Back to the old drawing board,” he said. “No, man,” Duke said, “back to the airless void.”
- Thomas Pynchon, “Entropy”
And we’re back. (I like it here – although I admit a bit more recognition, commentary, pushback, human contact etc wouldn’t go amiss.)
On mature reflection I’m not going to try and cover the Hart/Fuller debate in a blog post. What I am going to do, in this & the following posts, is to look at Hart’s position on natural law – on the ways in which, and the extent to which, law can and should be taken to rest directly on morality, rather than constituting its own free-standing structure of posited norms.
Hart is strongly associated with legal positivism, and with what Jules Coleman has called the ‘no necessary connection’ argument in particular. Legal positivism tells us that the law is constituted, and can be identified, through rule-based social practices which confer meaning and significance on particular statements, acts and roles. The ‘no necessary connection’ argument tells us that the rule of recognition – the set of rules, assumptions and practices which qualify law as law in a given society – either may or may not include reference to moral standards. Contra Kelsen on one hand and natural law theorists on the other, Hart argued that morality and the law might (in some systems) be connected – there might be a settled and officially-recognised practice of deciding certain points by reference to moral arguments – but that the two had no inherent, general or necessary connection.
In this post I’m going to introduce two apparent concessions by Hart to natural law arguments, then introduce a late comment in which he suggests that one of these might be in need of revision. The second and third posts will look at two papers by the philosopher David Lyons, one of which prompted Hart’s remark qualifying his position, and ask what implications Lyons’s arguments had for Hart. In the fourth, I shall review some later responses to Hart’s qualification, from Matthew Kramer, Leslie Green and John Gardner. (I shall read the Kramer and Green papers, and re-read the Gardner, before writing the fourth post but after the other three.)
The Giant Land Crab Postulate
Hart makes two concessions to natural law arguments, covering the content of law and the justice with which it is administered; we can refer to these as substantive natural law and procedural natural law, respectively. In his 1958 paper “Positivism and the separation of law and morals”, Hart introduces the concept of a necessary minimum level of law – and hence a minimal framework of substantive natural law – by reference to the fact that we are not giant land crabs.
suppose that men were to become invulnerable to attack by each other, were clad perhaps like giant land crabs with an impenetrable carapace, and could extract the food they needed from the air by some internal chemical process. In such circumstances (the details of which can be left to science fiction) rules forbidding the free use of violence and rules constituting the minimum form of property – with its rights and duties sufficient to enable food to grow and be retained until eaten – would not have the necessary non-arbitrary status which they have for us, constituted as we are in a world like ours. At present, and until such radical changes supervene, such rules are so fundamental that if a legal system did not have them there would be no point in having any other rules at all. Such rules overlap with basic moral principles vetoing murder, violence, and theft; and so we can add to the factual statement that all legal systems in fact coincide with morality at such vital points, the statement that this is, in this sense, necessarily so.
The argument is developed further in The Concept of Law, in which Hart identifies three fundamental facts of social life from which we can derive a minimal system of mutual forbearances, and hence the “minimum content of natural law”:
- human vulnerability
- approximate equality
- limited resources
- limited altruism
- limited understanding and strength of will
It has to be said that Hart’s second and fifth qualities don’t entirely seem to belong. The last is introduced in the context of the need for sanctions to back up voluntary compliance with a code of forbearances, rather than the need for the code itself. The second seems more to be a background condition of any human society. Hart refers to the impossibility of imposing a generally-accepted framework of rules on individuals of vastly differing capacities; in the absence of general rough equality, in other words, the 20-foot noblemen (or the mutant superheroes) could lord it over all of us and no law of ours could bind them. This seems a counterfactual too far, and Hart seems to have brought it in mainly in reference to international law; he argues that the absence of this condition is precisely the key problem in that setting.
If we remove these, we are left with a core list of three facts of life:
- human vulnerability
- limited resources
- limited altruism
These three can all be seen as vulnerabilities – vulnerability to direct physical harm; to material deprivation (ultimately, to hunger and cold); and to social abandonment and neglect. The three vulnerabilities have the interesting quality that the removal of any one of them would address the other two. (Try it: for the third one, “imagine all the people sharing all the world”. Also, “imagine there’s no scarcity” and “imagine we’re all solar-powered land crabs”. Some would say that John Lennon missed a trick there.)
There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)
Substantive natural law, then, gives a minimum content to positive law. It has a considerable degree of overlap with the precepts of morality, but it derives – as does morality – from the facts of human existence. Substantive natural law is the minimum framework of mutual forbearances required to regulate society in response to the irreducible fact of human vulnerability (physical, material and social). As for the relationship between (natural) law and justice, any breach of these minimal forbearances will, by definition, set back the vital interests of some member of society unacceptably. Any individual unremedied breach, or any broader settlement based on leaving a certain set of breaches unremedied, must be called unjust.
It’s the Law
Procedural natural law is introduced by Hart in his 1958 paper as follows:
If we attach to a legal system the minimum meaning that it must consist of general rules … this meaning connotes the principle of treating like cases alike, though the criteria of when cases are alike will be, so far, only the general elements specified in the rules. It is, however, true that one essential element of the concept of justice is the principle of treating like cases alike. This is justice in the administration of the law, not justice of the law. So there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles. Natural procedural justice consists therefore of those principles of objectivity and impartiality in the administration of the law which implement just this aspect of law and which are designed to ensure that rules are applied only to what are genuinely cases of the rule or at least to minimize the risks of inequalities in this sense.
In The Concept of Law, Hart develops this argument and includes a second argument in response to Fuller. (Fuller’s Anatomy of Law had not yet appeared at this stage, but Fuller had replied to Hart’s 1958 paper in the same year, arguing for an ‘inner morality of law’.)
We may say that [the idea of justice] consists of two parts: a uniform or constant feature, summarised in the precept “Treat like cases alike” and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. … In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them equally. Consistently with this, the procedural standards such as ‘audi alteram partem‘ ‘let no one be the judge in his own case’ are thought of as requirements of justice, and in England and America are often referred to as principles of Natural Justice. This is so because they are guarantees of impartiality or objectivity, designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself. The connection between this aspect of justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice. (pp. 160-1)
Further aspects of this minimum form of justice which might well be called ‘natural’ emerge if we study what is in fact involved in any method of social control … which consists primarily of general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. If social control of this sort is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and in general they must not be retrospective, though exceptionally they may be. This means that, for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey. Plainly these features of control by rule are closely related to the requirements of justice which lawyers term principles of legality. Indeed one critic of positivism has seen in these aspects of control by rules, something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity. (pp. 206-7)
For Hart in 1958, “natural procedural justice” consists in applying general rules objectively and impartially so as to treat like cases alike; this is “justice in the administration of the law”, which can be distinguished from “justice of the law”. For Hart in 1961, “to apply a law justly” is to apply the same rule to different cases without prejudice; however, he does not refer to this (in his own voice) as a principle of natural justice. He is also reluctant to extend the label of ‘natural’, or the term ‘morality’, to the ‘requirements of justice’ identified by Fuller as an ‘inner morality of law’; Hart prefers to characterise these as ‘features of control by rule’, requirements which are (‘in fact’) characteristic of any form of rule-based social control.
By 1961, then, Hart’s attachment to any idea of procedural natural justice was already qualified and reluctant. What, then, to make of the closing paragraph of the “Introduction” to 1983′s Essays in Jurisprudence and Philosophy?
I hope that in what is a second exchange of friendly polemics between myself and Fuller … I have not been unfair in my criticisms of his conception of an inner morality of law; but I see now largely as the result of Professor Lyon’s [sic] essay on Formal Justice that an argument similar to mine against Fuller might be used to show that my claim made in ["Positivism and the separation of law and morals"] and repeated in my Concept of Law that a minimal form of justice is inherent in the very notion of a general legal rule applied according to its tenor to all its instances is similarly mistaken. I am not sure that it is so, but I am clear that my claim requires considerable modification.
What indeed? We’ll find out next time, by way of a reading of David Lyons’s 1973 paper “On formal justice”.